HARPERDB CLOUD TERMS OF SERVICE

Version 2020-01-01

 

This Agreement is a legal agreement between you or the entity by whom you are employed or whom you represent (“Customer”) and HarperDB, Inc. (“HarperDB”) regarding the use of the HarperDB web services (Cloud Services) and HarperDB’s provision of related services for such software.

BY INDICATING YOUR ASSENT TO THIS AGREEMENT (FOR EXAMPLE, BY CREATING AN ACCOUNT TO USE THE CLOUD SERVICES THAT REFERENCES THIS AGREEMENT, OR BY INDICATING YOUR AGREEMENT BY CLICKING ON AN “ACCEPT”, “AGREE” OR SIMILAR BUTTON, OR CHECKING A BOX INDICATING YOUR AGREEMENT TO THESE TERMS, IN A WEB FORM OR AS PART OF YOUR DOWNLOAD OR INSTALLATION OF HARPERDB SOFTWARE, YOU ARE REPRESENTING AND AGREEING THAT: (1) YOU HAVE THE AUTHORITY TO BIND THE ENTITY BY WHOM YOU ARE EMPLOYED OR WHOM YOU REPRESENT TO THIS AGREEMENT; AND (2) THE ENTITY BY WHOM YOU ARE EMPLOYED OR WHOM YOU REPRESENT WILL BE BOUND BY AND A PARTY TO THIS AGREEMENT.

 

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, (1) YOU MAY NOT INDICATE YOUR ASSENT IN A WEB FORM, AND (2) YOU MAY NOT INSTALL, USE, COPY OR DISTRIBUTE THE HARPERDB SOFTWARE.

 

1.0 Cloud Services

 

1.1 HarperDB grants to Customer a limited, world-wide, non-exclusive, non-transferable, right and license
(without right to sublicense) to access and use the Cloud Service during the Subscription Term,
solely for Customer’s internal business operations, in accordance with the terms of this
Agreement. Customer is responsible for Users’ compliance with this Agreement.

 

1.2 Registration. Customer must register and setup an authorized account to use the Cloud
Service. Customer must keep the registration information accurate and complete. Customer is
responsible for the security of its User Credentials and for the use of its accounts and will
immediately notify designated support of any unauthorized use. You must contact us immediately if you believe unauthorized activity occurred in your account or your account information is lost or stolen.

 

1.3 User and Performance Data. HarperDB may from time to time use and process data about
Customer’s use of the services for the purposes of creating statistics and analytics data.
HarperDB may use such data for its own business purposes, including to maintain and improve
the Cloud Service and other services and to monitor and analyze its activities in connection with
the performance of such services. HarperDB will use user data in accordance with HarperDB’s Privacy Policy located at https://harperdb.io/legal/privacy-policy/ subject, as applicable, to the Standard Contractual Clauses for Controllers as approved by the European Commission and located at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:039:0005:0018:EN:PDF.  For additional information, please contact support@harperdb.io.

 

1.4 Some Cloud Services may be in pre-production, testing, or in “beta” phase (each a “Beta Offering”), for the intent of obtaining feedback, identifying any defects, and evaluating performance.

 

2.0 Acceptable Use

 

2.1 General Restrictions / Responsibilities. Customer shall not use the Cloud Service to violate the security or integrity of any network, computer or communications system, software application, or network or computing device. Customer shall not make network connections to any users, hosts, or networks unless Customer has permission to communicate with them, and may not use manual or electronic means to avoid any use limitations placed on the Cloud Service, such as access and storage restrictions. HarperDB may, but has no obligation to (a)
investigate any violation of this provision or misuse of the Cloud Service, or (b) remove or modify any data, or disable access to any resource, that violates the foregoing.  Customer is solely responsible for (i) the data, control of data, and legality of data, (ii) Customer’s configuration and use of the Cloud Service; (iii) for ensuring compliance with all data protection legislation and privacy laws applicable to the collection and provision of data; and (iv) taking appropriate action to secure, protect and backup data, which may include use of encryption to protect Data from unauthorized access.  Customer is responsible for communicating with the Cloud Service through encrypted and authenticated connections, as may be required by HarperDB, and for transmitting all Data using such security methods.  To the extent that Customer will be subject to user data access and deletion requests, Customer is responsible for configuring the retention period that contain EU personal data to a maximum of 30 days.

 

2.2 Data. (i) Customer shall not submit data that is illegal, harmful, fraudulent, infringing, offensive, or in violation of privacy rights.  HarperDB will not access any data except as necessary to provide the Cloud Service, any Support Services, or for a “Permitted Disclosure” (as defined in Section 5.2).

(ii) Customer shall not transmit cardholder or sensitive authentication data (as those terms are defined in the PCI DSS standards) unless such data is message-level encrypted by Customer.

(iii) Customer shall not transmit Protected Health Information (as defined under the Health Information Portability and Accountability Act (HIPAA)) into HarperDB Cloud without first having entered into a Business Associate Agreement with HarperDB.

(iv) Customer is responsible for ensuring a level of data protection commensurate with the sensitivity of the Data it uploads to HarperDB Cloud including, without limitation, an appropriate level of message-level encryption.

(v) Customer is responsible for managing a backup strategy regarding data.

(vi) Customer may not perform any security penetration tests or security assessment activities without the express, prior written consent of HarperDB’s CTO.

(vii) HarperDB has implemented reasonable security measures designed to prevent unauthorized access to and accidental loss of data uploaded to our service as described in this Addendum. HarperDB does not, however, guarantee that unauthorized third parties will not obtain access to data. Customer is responsible for its data and the consequences of uploading it to HarperDB Cloud.

 

3. HarperDB Software

 

3.1 As part of the HarperDB Cloud Service, HarperDB grants to Customer a non-exclusive, non-transferable license (without the right to sublicense): (i) to use the Software in accordance with the Documentation solely for your internal business use and solely in connection with Customer’s use of the HarperDB Cloud Service. Customer may permit its third-party service providers to install and use the HarperDB Software to provide outsourced services to Customer, and Customer will be solely responsible for such service provider’s compliance with this Agreement.

 

3.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any
third party to: (a) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to any Software. You may NOT transfer the Software under any circumstance; (b) use the HarperDB Software for third-party training; (c) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Product the Software (except to the extent applicable laws specifically prohibit such restriction) or (d) publish any results of benchmark tests run on any Software to a third party without HarperDB’s prior written consent.

 

4. Intellectual Property & Ownership

 

4.1 As between HarperDB and Customer, HarperDB will own all Intellectual Property Rights in or to the Software and Documentation, and any derivative works of or improvements or enhancements to any of the foregoing created or developed by or on behalf of HarperDB, or created or developed by or on behalf of Customer in violation of any of HarperDB’s Intellectual Property Rights. Customer acknowledges that the Software (including its structure, organization and code) and the Documentation constitute trade secrets and are the valuable property of HarperDB. Customer will not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or Documentation.  Except to the extent (if any) permitted by applicable law or required by HarperDB’s licensors, Customer will not decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the executable code supplied under this Agreement or use it to create a derivative work.

 

4.2 Data. Except for the limited rights granted under this Agreement, as between Customer and HarperDB, Customer retains all rights, title and interest, including all intellectual property rights, in the Data. Data does not include data that HarperDB collects as specified in section 1.3 (User and Performance Data).

 

4.3 Customer represents and warrants that they have the necessary rights in their data to grant the rights contemplated by this Agreement.

 

5. Confidentiality

 

5.1 Definition. “Confidential Information” means all information disclosed or made available by Discloser or its affiliates to Recipient or its affiliates in connection with the Purpose during the term of this Agreement. Confidential Information may be disclosed in written or other tangible form or by oral, visual, or other means. Confidential Information includes, but is not limited to, all information disclosed by Discloser: (a) that, although not related to the Purpose, should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party because of legends or other markings, the circumstances of disclosure, or the nature of the information itself; and (b) information of or relating to Discloser’s present or future products, research and development information, specifications, formulas, know-how, drawings, designs, processes, ideas, inventions, processing information, source code, object code, and other technical, business, and financial plans, pricing information, customer lists, the identity of any customers or suppliers, forecasts, and any other information relating to any work in process, future development, forecasts, manufacturing plans, marketing plans, strategies, financial matters, personnel matters, investors or business operations of Discloser, as well as the terms of this Agreement.

 

5.2 Obligations. Recipient shall: (a) hold Confidential Information in strict confidence and not disclose Confidential Information to any third party; (b) use Confidential Information for no purpose other than the Purpose; (c) protect and prevent the unauthorized disclosure or misuse of the Confidential Information by measures at least as restrictive as the measures it uses to protect its own Confidential Information, but with no less than a reasonable standard of care; (d) only permit access to Confidential Information to those Recipient employees and authorized representatives with a need to know such Confidential Information in connection with the Purpose and who have signed, or are otherwise bound by, agreements containing confidentiality obligations and use restrictions at least as restrictive as those contained herein; (e) promptly notify Discloser upon discovery of any loss or destruction, unauthorized access or acquisition, or unauthorized disclosure of Confidential Information, and reasonably cooperate with Discloser’s efforts to prevent and remediate the breach; and (f) remain responsible and liable for any breach of this Agreement by its employees or authorized representatives. Notwithstanding the above, Recipient shall not be in violation of this Section with regard to a disclosure of Confidential Information that was made in response to a valid order by a court or other governmental body, provided that Recipient, to the extent legally permitted, provides Discloser with reasonable prior written notice of such disclosure in order to permit Discloser to seek confidential treatment of such Confidential Information (“Permitted Disclosure”).

 

5.3 Exceptions. Recipient’s obligations under this Agreement with respect to any portion of the Confidential Information shall terminate if and when Recipient can demonstrate that such information: (a) was publicly available at the time it was communicated to Recipient by Discloser; (b) becomes publicly available after it was communicated to Recipient by Discloser through no breach of this Agreement by Recipient; (c) was in Recipient’s possession free of any obligation of confidence at the time it was communicated to Recipient by Discloser; (d) was rightfully communicated to Recipient free of any obligation of confidence subsequent to the time it was communicated to Recipient by Discloser; or (e) was developed by employees or representatives of Recipient independently of and without reference to any Confidential Information.

 

5.4 Injunctive Relief.  Each party acknowledges that a breach or threatened breach of this Section would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain.  Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 6 by the other party or any of its employees or agents.

 

6. Payment of Fees. Customer will pay HarperDB the fees for the Cloud Services when Customer subscribes via HarperDB’s online checkout. Customer will pay the Subscription Fees by credit card. All amounts payable for the Cloud services will be non-refundable. We may increase or add new fees for the Cloud Service by updating the applicable site. No fees are due from Customer for authorized use under a Free Trial or when using Free Credits to the HarperDB Cloud Services. Outstanding balances shall accrue interest at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by applicable law, from due date until paid.

 

7. Taxes. Customer will be responsible for any applicable sales, use, or any value added or similar taxes (“Taxes”) payable with respect to the Cloud Services to Customer, or otherwise arising out of or in connection with this Agreement, other than taxes based upon HarperDB’s personal property ownership or net income. Unless expressly specified otherwise in any Sales Order, all Subscription Fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status. Customer agrees to indemnify and hold HarperDB harmless from and against all claims, liabilities, costs, expenses and penalties arising out of or related to Customer’s failure to timely report or pay any such taxes, fees, duties or charges.

 

8. Term and Termination

 

8.1 Term. This Agreement commences when you create an account and will remain in effect until
terminated in accordance with this Agreement.

 

8.2  Termination.  You may terminate this Agreement by terminating all HarperDB Cloud Services under your account.  We may terminate the Agreement for any reason by providing you 30 days notice.  We may also terminate or suspend your account and this Agreement if (a) you are late in payment; (b) we discontinue any Cloud Service;

(c) we determine your unlawful use of the HarperDB Cloud Services; (d) we determine that your use poses a risk to the HarperDB Cloud Services; (e) you terminate or suspend your business; (f) you become subject to any bankruptcy or insolvency proceeding under federal or state statute; (g) you become insolvent or subject to direct control by a trustee, receiver or similar authority; (h) you have wound up or liquidated, voluntarily or otherwise.

 

8.2  Effect of Termination.  Upon the expiration or termination of this Agreement, (a) customer will immediately cease use of the Cloud Services, HarperDB software and support services, (b) all amounts owed to HarperDB under this Agreement which accrued before such termination or expiration will be immediately due and payable, (c) Customer is responsible for the export of data from the Cloud Services prior to termination of this agreement and acknowledges that it will have no further access to data, and (d) HarperDB is no longer responsible for storage of data contained in backup snapshots upon termination of this Agreement.

 

9. Limitation of Liability

 

EXCEPT FOR LIABILITY ARISING OUT OF A BREACH BY CUSTOMER OF SECTION 2 (ACCEPTABLE USE) AND CUSTOMER’S BREACH OF SECTION 3 (HARPERDB SOFTWARE) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE DELIVERABLES, HARPERDB PROPERTY, OR ANY SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  HARPERDB’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO HARPERDB UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.  CUSTOMER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT HARPERDB WOULD NOT ENTER INTO THIS AGREEMENT OR ANY STATEMENT OF WORK WITHOUT THESE LIMITATIONS ON HARPERDB’S LIABILITY.

 

10. Indemnification

 

You shall indemnify, hold harmless HarperDB, its affiliates and licensors and each of their respective officers directors, employees and representatives from and against any losses, claims, allegations, damages, costs, and expenses, including attorneys’ fees, arising from any claim arising out of or relating to any third party claim concerning; (a) your use of the Cloud Services (b) negligence or willful misconduct; (c) breach of any provision of this Agreement or violation of applicable law by you; (d) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (e) your data or the combination of your data with other applications, data, content or processes, including any claim involving alleged infringement or misappropriation of intellectual property rights; provided that you may not settle any claim against HarperDB unless such settlement completely and forever releases HarperDB from all liability with respect to such claim or unless HarperDB consents to such settlement, and further provided that HarperDB will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

 

11. General

 

11.1 Relationship of Parties.  The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

 

11.2 Assignment.  Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement without the other party’s consent to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise.  Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.

 

11.3 Governing Law.  This Agreement shall be governed by the laws of the State of Colorado without regard to its principles of conflicts of law.  The parties expressly exclude the application of the United Nations Convention on the International Sale of Goods.

 

11.4 Force Majeure.  We are not liable for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, civil disturbances, acts of civil or military authorities, or acts of God.

 

11.5 Export.  Customer shall comply with all applicable export and import control laws and regulations in its use of the Deliverables and HarperDB Property and, in particular, Customer shall not export or re-export the Deliverables and/or HarperDB Property without all required United States and foreign government licenses.  Customer will defend, indemnify, and hold HarperDB harmless from and against any violation of such laws or regulations by Customer, its agents or employees.

 

11.6 Entire Agreement.  This Agreement and its exhibits constitute the entire agreement between the parties with regard to the subject matter hereof.  No oral or written representation that is not expressly contained in this Agreement is binding on HarperDB or Customer.  No amendment to this Agreement or any Statements of Work shall be binding on either party unless in writing and signed by both parties.

 

11.7 Amendments.  We  may amend this Agreement at any time by posting a revised version on the site for the applicable Cloud Service or by otherwise notifying you by email.  Amended terms of service become effective upon posting on the site of the applicable Cloud Service or as stated in our email notice message.  By continuing to use the Cloud Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended terms of service.  Please check the site for the applicable Cloud Service regularly.

 

HarperDB Cloud Services – Service Level Agreement (SLA)

 

During your subscription term, HarperDB will use commercially reasonable efforts to make the Cloud Services available with a Monthly Uptime Percentage of at least 99.95%.  If HarperDB doesn’t meet this Monthly Uptime Percentage, then customer may be eligible for a Service Credit.

 

Definitions

 

“Downtime” is the total accumulated minutes during a calendar month for a given HarperDB instance(s) is unavailable. A minute is considered unavailable if all of your continuous attempts to establish a connection to the HarperDB instance(s) within the minute fail.  Partial minutes of unavailability will not be counted as Downtime. Downtime does not include downtime resulting from the exclusions below.

 

“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime in the month, divided by the total number of minutes in such month.  For any HarperDB instance(s) that are deployed and running for a partial calendar month, it is assumed to be 100% available during the portion of the month that it is not deployed.

 

“Service Credit” is the percentage of total monthly service fees that is credited to you if HarperDB approves your claim, as set forth below and in accordance with the process described below.

 

Service Credits

 

Service credits are calculated as a percentage of the total monthly service fees paid by customer for the unavailable HarperDB instance(s) for the calendar month in which the cloud service does not meet the uptime percentage, in accordance with the below schedule.

 

Monthly Uptime PercentageService Credit
99.95% but equal to or greater than 99.5%

99.5% but equal to or greater than 99.0%

99.0%

 

5%

10%

25%

 

 

Service Credit Request – Customer Obligations and Process

 

  1. To receive a Service Credit, customer must open a support ticket and submit a claim within 7 calendar days after the last day of the month in which the Downtime occurred.
  2. Customer must identify in the support ticket subject line “HarperDB Cloud Service SLA Credit Request”
  3. Customer must include (a) a detailed description of the events resulting in Downtime (b) the time and duration of the Downtime, and (c) Customers application logs that document failed request attempts.
  4. Customer must reasonably assist HarperDB in investigating the cause of the Downtime and processing of the claim.

 

HarperDB will evaluate Customer request and information provided to determine in good faith whether a Service Credit is owed.  If HarperDB has determined that a credit is owed, customer will be notified and issued a service credit.  We will apply any Service Credit to a future invoice or payment.

Service credits are not refundable and can only be used toward future billing charges.  Service credits are Customer’s sole and exclusive remedy with respect to any failure or deficiency in the Services availability.  Service credits will not entitle Customer to any payment from HarperDB.  Service credits are Customer’s sole and exclusive remedy for any unavailability of the Cloud Service in accordance with the terms of this SLA.  Service credits expire without refund the earlier of 12 months from issuance or 1 month after termination of the current Subscription.

 

Limitations

 

The SLA does not apply to any unavailability of the Cloud Service:

  1. That results from Customer’s misuse of the HarperDB Cloud Service in violation of Section 2 of the Agreement (Acceptable Use);
  2. Due to factors outside of our reasonable control, including but not limited to the weather, civil disturbances, acts of civil or military authorities, or acts of God;
  3. That results from services, hardware, or software provided by a third party and not within the primary control of HarperDB, including issues resulting from inadequate bandwidth or resulting from region-wide failures of cloud platform services on which HarperDB’s Cloud Service runs;
  4. That occurs during any period when Customer’s use of the Cloud Service exceeds the purchased capacity;
  5. That results from Customer’s unauthorized action or lack of action when required, including those of Customer’s Users or by means of Customer’s passwords;
  6. That results from any unauthorized access;
  7. That results from Customer’s failure to use acceptable configurations that may be defined in the HarperDB Cloud Service documentation
  8. Unavailability due in whole or in part to any of the following: Customer-controlled actions and/or environment or other failures or shortcomings not within HarperDB’s control including but not limited to Customer’s violation of the Agreement; failure by Customer to take any remedial action in relation to the Cloud Service as recommended by HarperDB, or otherwise preventing HarperDB from doing so; Customer’s negligence or willful misconduct, which may include failure to follow agreed-upon procedures; scheduled maintenance that takes place upon proper notice, ad hoc maintenance carried out to avoid future unavailability, and/or updates; or Customer’s failure to provide information required by HarperDB to provision a instance(s).